* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on : 23.02.2024
% Pronounced on : 22.05.2024

+ CRL. A. 191/2002
RAJ KUMAR ..... Appellant
Through: Mr. S.N. Gupta, Advocate.

Versus

STATE ..... Respondent

Through: Mr. Laksh Khanna, APP for State
alongwith SI Reema PS Dwarka,
Sector-23, New Delhi.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

1. The present appeal under Section 374 Cr.P.C. has been filed against
the judgement of conviction dated 19.02.2002 and order on sentence dated
20.02.2002 passed by the learned ASJ in Sessions Case No.114/1999 arising
out of FIR No.140/1999 registered under Sections 304B/498A/34 IPC at
P.S. Dwaraka.
Vide the impugned judgement, the appellant was convicted for the
offence punishable under Section 304B and 498A IPC. Vide the order on
sentence, he was directed to undergo rigorous imprisonment for a period of
10 years for the offence punishable under Section 304B. For the offence
punishable under Section 498A, the appellant was directed to undergo
rigorous imprisonment for a period of 2 years alongwith fine of Rs.1,000/-
in default whereof, he was directed to further undergo 3 months

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imprisonment. The substantive sentences were directed to run concurrently
and the period already undergo was also directed to be setoff.
2. The facts, as noted by the Trial Court, are as under:-
“ Three accused persons namely Raj Kumar Sharma s/o Gokul
Chand Sharma, the husband and his two brothers, other two
accused Krishan Kumar and Pradip Kumar were chargesheeted
for offence U/s 498A and 304B IPC for the dowry death of Smt.
Vandana Sharma w/o Raj Kumar Sharma. Charge for these two
offences was framed against these 3 accused to the effect that
after 4.12.96 till 7.7.99 these three accused subjected victim Smt.
Tara @ Vandana to cruelty on account of dowry demand,
accused Raj Kumar being the husband and other two accused
being his brothers and thereby they committed offence U/s 498
IPC. The second head of charge is that on 6.7.99 at around 11.45
pm all these three accused committed offence of dowry death U/s
304 B IPC as Tara died in a house WZ-686/B1 Raj Nagar Delhi
by burns under circumstances otherwise than normal within 7
years of her marriage and soon before her death the accused had
subjected victim Tara to cruelty on account of dowry demand.
This charge was framed on 21.3.00 and since all three accused
pleaded not guilty to the charge the case proceeded for trial.”

3. A total of 9 witnesses were cited as part of the chargesheet, however,

during trial, only 8 were examined. Dr. Arvind, who had conducted the post
mortem of the deceased proved the post mortem report as Ex.PW1/A. As per
the report, the cause of death was opined to be shock consequent upon 100%
ante mortem flame burns. The prosecution also examined brothers of the
deceased namely Sunil Kumar Sharma and Anil Kumar Sharma. The inquest
proceedings were proved through the concerned SDM Sh. Arun Kumar
Misra, who also exhibited the statements the brothers of the deceased that
were recorded by him, as Ex.PW3/A and Ex.PW4/A. SI Sanjay Misra, the
I.O. deposed the facts as had been noted in the chargesheet.

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4. All the accused persons were examined under Section 313 Cr.P.C.
The present appellant, who is the husband of the deceased, denied having
made any kind of demand for dowry or treated the victim with cruelty on
account of any such demand. He further stated that he was a victim of
circumstances and a false case was fabricated against him. The other
accused persons also raised similar defence and denied the prosecution case.
Pertinently, vide the impugned judgment only the present appellant
was convicted while the other two accused were acquitted. Concededly, the
State has not challenged the acquittal.
5. In the present appeal, learned counsel for the appellant contended that
there was considerable delay in registration of the FIR. Though the incident
took place in the night of 06.07.1999 and indisputably, the two brothers of
the deceased had arrived in Delhi on 10.07.1999, their statements came to be
recorded by the SDM only on 12.07.1999. It was argued that the said delay
alongwith other instances like omission to mention the name of any eye
witnesses created serious doubts upon the prosecution case, as the said
matter could be considered as being a result of deliberation and levelling of
false allegations.
On this aspect, it is sufficient to note that SI Sanjay Mishra deposed
that DD No. 32-A (Ex. PW4/E) was recorded on 06.07.1999 itself. The
deceased was taken to Safdarjung Hospital on the same day and intimation
in this regard was also given to the concerned SDM. Further, brother of
deceased Sunil Kumar Sharma deposed that on reaching Delhi on
10.07.1999, he along with his brother went to P.S. Dwarka where they were
asked to come on the next day. On 11.07.1999, they were again asked to
come on 12.07.1999, on which day, their statements were finally recorded.

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The trial Court found the contention to be meritless and does this Court.
6. It was next contended that the prosecution had failed to prove that
there was any demand of dowry soon before death and that ingredients of
neither Section 304B nor Section 498A were fulfilled. In this regard, learned
counsel has referred in detail to the testimonies of brothers of the deceased.
Another point of unfair investigation has also been raised by stating that
appellant had also suffered burn injuries while saving the deceased, but the
I.O. deliberately didn’t bring the MLC/OPD report on record. Moreover, the
information relating to the incident was given to the brothers of the deceased
by one of the brothers of the appellant. It was further submitted that no
person from the vicinity/locality was examined, though such individuals
would have been the most material witness.
7. Learned APP for the State strongly opposed the contention and
submitted that the ingredients were established and proved beyond doubt by
the testimony of brothers of the deceased. It was further stated that the death
took place within two and half years of marriage.
8. Pertinently, insofar as the present appellant is concerned, two major
incidents formed the basis for holding him guilty for the offence under
Section 498A and 304B IPC. The first incident related to the appellant
hitting the deceased with an iron press, whereas the second incident related
to the demand of Rs.10,000/- made by the appellant.
8. As regards the first incident, the impugned judgement notes that Anil
Kumar Sharma, one of the brothers of the deceased, had deposed that during
1997-98, the appellant had hit the deceased with an iron press and that his
sister-in-law Sunita had witnessed the said incident. He further deposed that
after the said incident, the deceased was brought to her maternal home,

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whereafter appellant’s brother-in-law namely Shyam Sunder Sharma
intervened in the matter and eventually, the deceased returned to her
matrimonial home after about 15/20 days. Even Sunil Kumar Sharma, the
other brother of the deceased also deposed that the appellant had given blow
to the deceased with an iron press. He also specifically deposed that he was
told about the said incident by his bhabhi-Sunita. The appellant, in his
statement under Section 313 Cr.P.C. denied that any such incident had taken
place.
9. While both the brothers of the deceased had deposed that the deceased
was hit with an iron press by the appellant, however, it must be noted that
their knowledge of the incident is hearsay inasmuch as they were not
witness to the said incident and were informed about the said incident by
their sister-in-law Sunita. It is also important to note that Sunita, who is
allegedly an eye-witness of the said incident, and resultantly, material to the
case of the prosecution, was not even cited as a witness. Though Sunil
Kumar Sharma stated that a complaint/FIR was filed in the police station in
this regard, however, no such FIR was ever placed on record. In cross-
examination, thought the witness produced a noting about the diary No. P.S.
Barrakpur, the same didn’t bear any seal of any police station. In fact, in his
cross-examination, he even stated that he didn’t recollect the date and month
of the FIR registered.
10. As regard the second incident, the prosecution has alleged that the
appellant harassed the deceased and demanded a sum of Rs.10,000/- and that
the same was paid by the younger brother of the deceased namely Anil
Kumar Sharma.
11. While both the brothers stated about the said incident, it must be

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noted that Sunil Kumar Sharma did not mention about the said incident in
his examination-in-chief, even though he had stated about the same in his
statement recorded before the SDM. Rather, it was during his cross-
examination that for the first time in Court, he stated that his brother Anil
Kumar Sharma had told him about giving Rs.10,000/- to the appellant to
start some work. He further stated that he had not given any money to the
deceased as she never asked any money from him on account of any demand
from the appellant. Interestingly, he introduced an altogether new fact that
Anil Kumar had given another Rs.2,000/- as the appellant had shortage of
money. This aspect of payment of Rs. 2000/- was never a part of prosecution
case and he was duly confronted with his earlier statement recorded before
SDM, wherein this aspect wasn’t mentioned.
12. Anil Kumar Sharma deposed about the second incident during his
examination-in-chief, wherein he stated that the appellant had asked for the
said money to set up his own business. He further deposed that he had paid
the said money to the appellant and further asked the appellant about what
kind of business he would start and even offered to arrange some
employment for him. But during his cross-examination, he rather stated that
the appellant had demanded the money in confidence and that he had given
the same in secrecy. He also mentioned about payment of another Rs. 2000/-
and admitted that the said money was sent by his mother through money
order. In this regard, it is worthwhile to note that neither any receipt was
produced nor was the mother examined in trial.
13. Notably, both the witnesses stated to the effect that they did not
remember the particulars like date, month or year when the money was
given to the appellant. From the above, it is evident that insofar as Sunil

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Kumar Sharma is concerned, neither was any demand extended to him nor
did he pay any amount. As noted above, there is material contradiction in the
testimony of Anil Kumar Sharma. If the appellant had demanded money in
confidence, the same was not through the deceased. Further there is no clear
cut and unambiguous allegation that on this account, the deceased was
harassed and subjected to cruelty.
14. A further perusal of testimony of Anil Kumar Sharma would reveal
that he also introduced a completely new allegation that two days prior to
her death, deceased had made a phone call to him wherein she was crying
but didn’t say anything. He was confronted with the statement made before
the SDM, wherein there was no mention of any such phone call by the
deceased two days prior to her death.
15. It has also come in the testimony of both the brothers that the
deceased alongwith the appellant had shifted to Delhi where they had taken
up a rented accommodation in Palam Colony.
In support of his case, the accused persons examined one Parwati r/o
Palam colony, who deposed that she knew the accused persons (including
the appellant) as they were her tenants. She deposed that all the family
members had good relationship and further that there was no complaint from
the side of the deceased.
16. On a careful examination of the entire evidence that has come on
record, this Court is of the considered opinion that the prosecution has failed
to prove the two alleged incidents beyond reasonable doubt against the
appellant. The witnesses have failed to mention any date, month or even
year for both the incidents. While the knowledge of first incident is hearsay,
there are material contradictions with regard to the second incident.

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17. Resultantly, the appeal succeeds and the impugned judgment of
conviction and order on sentence are set aside.
18. The bail bonds and surety bonds are discharged.
19. A copy of this judgment be forwarded to the trial court as well as
concerned jail superintendent.

MANOJ KUMAR OHRI

(JUDGE)
MAY 22, 2024
ga

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